Philip Morris United States, Inc. v. Mease

• Decision Date: 23 July 2013
• Docket Number: Record No. 2224–12–2.
• Citation: 62 Va.App. 190,745 S.E.2d 155
• Court: Virginia Court of Appeals
• Parties: PHILIP MORRIS USA, INC. v. Wilbur N. MEASE.

62 Va.App. 190

745 S.E.2d 155

PHILIP MORRIS USA, INC.

v.Wilbur N. MEASE.

Record No. 2224–12–2.

Court of Appeals of Virginia, Richmond.

July 23, 2013.

Michael N. Salveson (Natalie Cantor Gros; Littler Mendelson, P.C., on briefs), for appellant.

Malcolm Parks (Maloney, Parks & Clarke, P.C., on brief), for appellee.

Present: ELDER, PETTY and McCULLOUGH, JJ.

ELDER, Judge.

Philip Morris USA, Inc. (employer) appeals an award of the Workers' Compensation Commission (commission) that required employer to pay for medical treatment to Wilbur N. Mease (claimant) relating to his traumatic brain injury. Employer contends the prior commission award approving the parties' agreement to pay benefits covered only “head trauma” and, thus, any claim regarding a traumatic brain injury is barred by the statute of limitations. Employer further argues the commission erred in imposing sanctions against employer for defending the instant claim without reasonable grounds. We hold credible evidence supports the commission's findings that (1) the scope of the original award included claimant's traumatic brain injury, thereby obligating employer to pay for the attendant medical treatment; and (2) employer defended claimant's claim without reasonable grounds, thereby justifying the imposition of attorney's fees against employer. Accordingly, we affirm the commission's decision.

I.BACKGROUND

On appeal from the commission, “we review the evidence in the light most favorable to the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence establishes that on January 29, 2004, claimant fell at work and sustained a compensable injury. The parties endorsed an agreement to pay benefits form ¹ that provided temporary total wage compensation and identified claimant's injury as “head trauma.” The commission issued a June 28, 2004 order that approved the agreement to pay benefits and awarded claimant lifetime medical benefits “for reasonable, necessary and authorized medical treatment causally related to the 1/29/2004 injury.” Claimant saw numerous doctors following his accident and received payment from employer and its insurance carrier for treatment relating to his compensable injuries until 2011.

On March 10, 2011, claimant informed his treating physician, Dr. Patrick McGowan, that he had to decrease the number of physical therapy sessions from six per week to three per week. Henry Mease, claimant's brother and authorized attorney in fact, testified that the carrier's claims representative informed claimant in a telephone call that his physical therapy would be reduced because six sessions per week were too expensive. On May 20, 2011, claimant filed a claim requesting that employer provide physical therapy six times per week rather than three times weekly. Claimant attached two doctor's notes that recommended increased physical therapy and opined that claimant's health problems were related to his traumatic brain injury. Dr. McGowan indicated that the reduction in physical therapy sessions left claimant “weaker and not as functional,” and Dr. James Wilson confirmed that the reduction in physical therapy had led to “increased problems with balance and activity tolerance” that had resulted in two ground level falls in the previous two weeks. Employer defended on the grounds that the treatment sought was not causally related to the compensable injury, was not reasonable or necessary, and was excessive and costly.

The deputy commissioner held that in “the absence of any conflicting advice from another physician, either by record review or personal evaluation,” “the medical evidence clearly indicates the connection between the need for six days of physical therapy and [claimant's] compensable injuries.” The deputy commissioner therefore awarded claimant temporary total disability compensation benefits and ordered that claimant be allowed to resume the six days of physical therapy per week as prescribed by his treating physicians. Regarding claimant's request for attorney's fees, the deputy commissioner noted that employer “obtained no medical information on [its] own” and “failed to introduce any evidence to substantiate [its] defense.” The deputy commissioner therefore held the “lack of effort in presenting any defense, in the face of two uncontradicted referrals from treating physicians, dictates the finding[ ] that the claim had been defended without reasonable grounds[,]” and ordered employer to pay attorney's fees to claimant pursuant to Code § 65.2–713(A).

On review to the commission, employer argued for the first time that claimant's claim for medical treatment relating to his brain injury was barred by the statute of limitations. The commission held that under its authority to interpret its own award orders, the agreement to pay benefits did not provide “a reasonably definite medical diagnosis” when it referred only to “head trauma.” The commission therefore looked to extrinsic evidence to give meaning to the intent of the parties. Specifically, the commission noted that employer “was well aware of the claimant's brain injury at the time it prepared the agreement,” and accepted responsibility for the cost of treating the brain injury. Thus, the commission held employer's course of conduct demonstrated that the original award encompassed claimant's brain injury. The unanimous commission also affirmed the award of attorney's fees. The commission rejected employer's assertion that it presented a valid statute of limitations defense because it did not assert that defense to the deputy commissioner. Further, of the three defenses employer did present, the commission noted that employer offered no evidence to support its assertions that the requested treatment was unreasonable, unnecessary, and excessive. This appeal followed.

II.ANALYSIS

On appeal, “we review questions of law de novo.” Rusty's Welding Serv. v. Gibson, 29 Va.App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc). However, we defer to the commission in its role as fact finder. VFP, Inc. v. Shepherd, 39 Va.App. 289, 292, 572 S.E.2d 510, 511–12 (2002). If supported by credible evidence, the commission's factual findings are “binding on appeal,” Tomes v. James City Fire, 39 Va.App. 424, 430, 573 S.E.2d 312, 315 (2002), “even though there is evidence in the record to support a contrary finding,” Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986).

When “determining whether credible evidence exists,” we cannot “retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses.” Wagner Enters. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991). In addition, the commission's “conclusions upon conflicting inferences, legitimately drawn from proven facts, are equally binding on appeal.” Watkins v. Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).

A.AWARD OF MEDICAL TREATMENT

The present dispute concerns claimant's May 20, 2011 request for increased physical therapy sessions causally related to his traumatic brain injury. Employer concedes that claimant suffered a traumatic brain injury and head trauma as a result of his January 29, 2004 industrial accident. However, employer argues the statute of limitations bars an award for medical benefits for the traumatic brain injury because such an injury did not fall within the scope of the original timely-filedagreement to pay benefits.² Employer asserts that the original agreement to pay benefits covered only a “head injury” and that claimant failed to file a claim to add coverage of a traumatic brain injury to the scope of the award. Employer concludes that the May 20, 2011 request for increased therapy sessions was therefore untimely.

An employee must assert against his employer “any claim that he might have for any injury growing out of the accident” within the two-year statute of limitations period found in Code § 65.2–601. Shawley v. Shea–Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975). “[T]his provision is jurisdictional, and failure to file within the prescribed time will bar a claim.” Mayberry v. Alcoa Bldg. Prods., 18 Va.App. 18, 20, 441 S.E.2d 349, 350 (1994). The question of “[w]hether a claim is barred by the statute of limitations is a question of law[,]” which “[t]his Court ‘reviews ... de novo.’ ” Tuck v. Goodyear Tire & Rubber Co., 47 Va.App. 276, 284, 623 S.E.2d 433, 437 (2005) (quoting Tomes, 39 Va.App. at 429–30, 573 S.E.2d at 315). However, “[w]hether the information filed with the commission is sufficient to constitute a timely filed claim for a particular injury is a question of fact [that] ... will not be disturbed on appeal if supported by credible evidence.” Corporate Res. Mgmt. v. Southers, 51 Va.App. 118, 127, 655 S.E.2d 34, 38 (2008) (en banc).

The issue in this case is whether the June 28, 2004 award order approving the agreement to pay benefits “for reasonable, necessary and authorized medical treatment relating to the 1/29/2004 injury” required employer to pay for medical treatment relating to claimant's traumatic brain injury. “[W]hen construing a lower court's order, a reviewing court should give deference to the interpretation adopted by the lower court.” Gibson, 29 Va.App. at 129, 510 S.E.2d at 260. Evidence relevant to interpreting the scope of the award includes whether the claimant “file[d] a formal claim listing [the disputed] injuries ... prior to expiration of the statute of limitations” and whether the medical records contained “any mention of injury to those body parts ... prior to expiration of the statute of limitations.” Southers, 51 Va.App. at 129, 655 S.E.2d at 39. In addition, “we look not only to the express words of the agreement, but to extrinsic evidence and to employer's actual knowledge regarding the type of injury.” Tyco Elecs. v. VanPelt, 62 Va.App. 160, 173, 743 S.E.2d 293,...